On January 25, 2012, six current and former Food and Drug Administration (FDA) employees filled a lawsuit in the U.S. District Court for the District of Columbia alleging that the FDA violated their constitutional privacy rights. The employees claim that the FDA monitored the employees’ emails sent from private accounts over a period of two years. The lawsuit also alleges that the employees were targeted for their whistle-blowing after they expressed concern to Congress that the FDA has approved purportedly unsafe medical devices.

The FDA terminated two of the employees and did not renew the contracts of another two following the whistleblowers’ decision to come forward and report the approval of medical products they believed were unsafe.

Responding to the FDA’s alleged intrusion into the whistleblowers’ private emails, Mr. Oswald told the Federal Times:

“I think the FDA went too far in its zeal to monitor these employees. Employers who access [and] retain emails or other electronic stored information from a third-party server risk violating an employee’s privacy interest.”

The article, “When Can Agencies Monitor Your Email? FDA Case Sparks Debate Over Policy”, appeared in the February 5, 2012 edition of the Federal Times.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

This settlement relates to a contract Oracle entered into in 1998 to sell software licenses and technical support to government entities through GSA’s Multiple Award Schedule (MAS) program.   The MAS program provides the government and other GSA-authorized purchasers with a streamlined process for procurement of commonly used commercial goods and services.  To be awarded a MAS contract, contractors must agree to disclose commercial pricing policies and practices, and to abide by the contract terms.  The settlement resolves allegations that, in contract negotiations and over the course of the contract’s administration, Oracle knowingly failed to meet its contractual obligations to provide GSA with current, accurate and complete information about its commercial sales practices, including discounts offered to other customers, and that Oracle knowingly made false statements to GSA about its sales practices and discounts.

Tony West, Assistant Attorney General for the Civil Division of the Department of Justice sates:

“Companies that engage in unlawful or fraudulent practices to secure government business undermine the integrity of the procurement process and create an unfair advantage against the majority of companies that are playing by the rules.  Resolutions like this one – the largest GSA false claims settlement in history – demonstrates our commitment to ensure taxpayers are not overpaying for the products and services they receive.”

The settlement resolves a lawsuit filed on behalf of the U.S. government by former Oracle employee, Paul Frascella, who will receive $40 million as his share of the recovery in the case.   Under the whistleblower provisions of the False Claims Act, private citizens can bring lawsuits on behalf of the United States and share in any recovery obtained by the government.

The article highlights changes to Washington D.C.’s recently amended Whistleblower Protection Act (D.C. WPA); changes which make it the “strongest public sector whistleblower protection statute in the country” and a model for other states to follow. Messrs. Oswald and Zuckerman point out that in order “to encourage public sector employees to blow the whistle on waste, fraud, and abuse, states must provide robust whistleblower protections to employees.”

These changes were brought about after the D.C. Council investigated Harriette Walters, a former employee at the Office of Tax and Revenue, and discovered she had embezzled over $48 million over the course of 18 years. Her co-workers remained silent the entire time because they feared reprisals for blowing the whistle.

Now, “the D.C. WPA protects any current or former employee, applicant for employment, as well as employees of independent and subordinate agencies….[Furthermore,] authorizing actions against individuals is critical to deterring retaliation against whistleblowers.”

Changes to the D.C. WPA include:

1. Broad Scope of Protected Conduct: The D.C. Whistleblower Protection Act protects an employee who lawfully discloses information which he or she reasonably believes evidences gross mismanagement, waste of public funds, abuse of authority in connection with the administration of a public program or the execution of a public contract, a violation of law, regulation, or contractual term, or a substantial danger to public health and safety. The D.C. WPA also protects and employee’s refusal to comply with an illegal order…. [Defined as] a directive to violate or assist in violating any federal, state, or local law, rule, or regulation.
2. Protecting ‘Duty Speech’: The amended D.C. WPA also eliminated the “duty speech” loophole. Foreseeing the assertion of the “duty speech” defense from Garcetti v.Ceballos, the D.C. Council clarified that employees are protected even if their disclosure is made during the course of performing their job duties.
3. Prohibited Types of Retaliation: The D.C. WPA forbids a wide range of retaliatory adverse actions, including “recommended, threatened, or actual termination, demotion, suspension, or reprimand; involuntary transfer, reassignment or detail; referral for psychiatric of psychological counseling; failure to promote or take other favorable personnel action.
4. Causation Standard and Burden-Shifting Framework: The D.C.  WPA applies a causation standard and burden shifting framework that is mare favorable to employees than Title VII of the 1964 Civil Rights Act’s McDonnell Douglas standard. To prevail under the D.C.WPA, an employee must show by a preponderance of the evidence that her protected conduct was a contributing factor in the adverse employment action.
5. Statute of Limitations and Right to Jury Trial: Under the D.C. WPA, a whistleblower may seek a trial by jury within three years after a violation occurs or within one year after he or she first learns of the violation, whichever comes first.
6. Remedies: Remedies available to a whistleblower include injective relief, reinstatement to the same or equivalent position with all seniority rights and benefits, back pay, interest, compensatory damages, attorneys’ fees, and costs.
7. Financial Incentive for Whistleblowing: The District is encourage employees to become whistleblowers by creating financial incentives while simultaneously prohibiting retaliation and holding those who participate in retaliation personally responsible for their acts. 
8. Protection for Employees of D.C. Contractors: The District extends similar protections to the employees of District contractors and instrumentalities.

Messrs. Oswald and Zuckerman conclude that more states should adopt whistleblower protection statutes similar to the District of Columbia’s because strong whistleblower protection laws like the D.C. WPA will incentivize more people to come forward and blow the whistle.

While substantive laws create or impair substantive rights, procedural laws generally only “relate to the modes of procedure or confirm or clarify existing rights.” Furthermore, while reliance interests generally militate against the retroactive application of laws, courts have recognized “diminished reliance interests in matters of procedure.” (Citations omitted).

…[A]pplications of new procedural rules are generally not considered impermissible retroactive applications of the law.

…[T]he application of new procedural laws applies not just to subsequently-filed lawsuits based on conduct that predated their enactment, but to cases pending at the time the new rules take effect. “Unless a contrary legislative intent appears, changes in statute law which pertain only to procedure are generally held to apply to pending cases.” (Citations omitted).

For more information about The Employment Law Group® and its Whistleblower Law Practice, click here.

For more information about the firm’s Whistleblower Law Practice, click here.

For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.

• Clarifying that a whistleblower need not be an original source of a protected disclosure.  The legislative history states: “prospective whistleblowers should not have to guess about whether a supervisor already knows about misconduct in government.”

• Eliminating the “duty speech” loophole, i.e., protected conduct includes blowing the whistle in the course of performing one’s job duties.  Protected acts under the DC WPA include “disclosure[s] made in the ordinary course of an employee’s duties.”

• Clarifying that retaliatory investigations are a form of actionable retaliation.  The DC WPA now defines retaliation to include “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.”  An investigation includes a fitness for duty examination.

• Extending the statute of limitations to 3 years and clarifying that § 12-309 (the pre-suit notice provision) does not apply to DC WPA claims.  Under the revised DC WPA, a “civil action shall be filed within 3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first.” 

• Clarifying that a DC WPA action can be brought against a DC supervisor or official having personal involvement in the prohibited personnel action.  “Any person” who is found to have participated in prohibited retaliation may be “subject to appropriate disciplinary action including dismissal.”

• Providing a financial incentive for whistleblowing.  In particular, a whistleblower may receive an award of up to $50,000 for providing information that enables the District to recover or prevent the loss of more than $100,000 in public funds. 

• Increasing the civil penalty for retaliation from $1,000 to $10,000.

For information on The Employment Law Group® law firm’s Whistleblower Retaliation Practice, click here.

 Browne was the program coordinator for UDC’s federally funded Career Counseling and Development Center where he worked with UDC’s at-risk students.  He discovered that his supervisors were intentionally misrepresenting the program’s success to secure federal funding.  He took a stand against this fraud and in return he was retaliated against and ultimately fired. 

Regarding the verdict, R. Scott Oswald, Managing Principal with The Employment Law Group® law firm said, “This case is an extraordinary victory for whistleblower protection in the District of Columbia.  I especially wish to acknowledge Mr. Browne who demonstrated tremendous courage and fortitude throughout his tenure at UDC and the course of this litigation.”

For information on The Employment Law Group® law firm’s Whistleblower Practice, click here.

The jury awarded Browne compensatory damages based on its finding that UDC violated the D.C. WPA and was liable for negligent hiring and negligent supervision of Naiker.  The court will hear evidence on Browne’s economic damages claim on October 22, 2009. 

R. Scott Oswald and David Scher, Principals at The Employment Law Group® law firm (www.employmentlawgroup.com), represented Mr. Browne and can be reached at 202-331-2806 and 202-261-2802, respectively.